Law Times

Page 14 September 11, 2017 • Law timeS www.lawtimesnews.com the full benefit of the tribunal's reasons for decision as well as a 'rich, fully developed record in hand.'" In the event he was wrong on the standing issue, Belobaba went on to assess the merits of Campisi's challenge, finding that none of the impugned pro- visions breached the Charter. "In my view, it cannot be se- riously contested that the reso- lution of SABS disputes by LAT is necessarily incidental to the broad policy goals that led the provincial legislature to estab- lish threshold no-fault automo- bile insurance in the first place," said the ruling. In a separate decision, he also ordered Campisi to pay the province $50,000 toward its costs for defending the appli- cation. Toronto constitutional lawyer Rocco Galati, who acted for Campisi, tells Law Times that Campisi's appeal, which is likely to be heard later this year or early next, will focus in part on what he says were inadequate reasons for the dismissal of the case on its merits. "The decision deals with the legal issues in a very perfunc- tory way," Galati says. "There's no analysis, just a recital of the facts and a conclu- sion." Thunder Bay, Ont. lawyer Duncan Macgillivray says he's cheering on Campisi's appeal. "I would love to go back to the system where you at least had the option of going to court, particularly in situations where you have a tort case proceed- ing in court anyway. It always made things easier in the past when you were able to match up the timelines of your tort claim with the accident benefits case," he says. "That would also leave the LAT to concentrate on giving quicker decisions on smaller is- sues." One of the chief aims of the LAT transfer was to speed up the accident benefits adjudica- tion process by allowing hear- ings to occur by phone and by loosening procedures. But Cameron says the more informal approach is inappro- priate for dealing with claims of catastrophically injured vic- tims. "It's almost like a kangaroo court for seriously injured peo- ple," he says. One of Cameron's clients has an upcoming two-day hearing scheduled at the LAT, where an adjudicator will hear evidence from five witnesses before de- termining a dispute between the claimant and his insurer on the level of care he will need in the future. "Nobody is going to get a full picture in a complex case like this. The rest of his life is going to be determined on the basis of a two-day hearing with limited rules of evidence, and it's simply not fair," he says. "We don't need a two-week trial over an $8,000 treatment plan. But when there's $2 mil- lion at stake over the course of someone's life and losing could stop them from being able to function, it should be taken a bit more seriously than that." Cameron says he sees the removal of the option to sue as part of the "slow erosion" of claimant rights since the advent of the no-fault insurance system in the early 1990s. Last year's changes came at the same time as the provincial government enacted a series of controversial cuts to accident benefits, including: • A cut to the combined at- tendant care and medical and rehabilitation services for catastrophically injured victims to $1 million from $2 million. • A cut to the combined atten- dant care and medical and rehabilitation services for non-catastrophically injured victims to $65,000 from $86,000. • A two-year limit on non- earner benefits, which were previously available follow- ing a six-month waiting peri- od until claimants turned 65, and on a reduced basis after that age. • A reduction in the standard duration for medical and re- habilitation benefits to five years from 10 years, except for children. Barda says he suspects part of the reason plaintiff-side lawyers have taken aim against the LAT is because of the perception that it is less claimant-friendly than the old FSCO system. His firm conducted a study of the first 57 publicly released decisions by LAT adjudicators and found that just a small ma- jority of cases favoured insurers over claimants. "It seems like a pretty bal- anced system," Barda says. However, Macgillivray says the structure of the LAT, with its focus on speed and written submissions, favours insurers. "The insurer will come in with a 10-page medical report from their doctor, which tends to be more detailed than the paper- work the insured has available to them at that stage; often just a treatment plan with a short note from their doctor," he says. "An adjudicator looking at those two may well think the longer report looks better." LT PERSONAL INJURY T imes have changed since Alexis de Tocqueville said "The jury, which is a most energetic means to make the people rule, is also the most effective means to teach them to rule." Some are of the view that civil jury trials should be abolished. The better dis- course concerns: (i) judicial econo- my; and (ii) the purpose of a civil jury trial. A jury case usually takes more time. The charge, deliberation, and dealing with certain objections in the absence of the jury take up time. However, juries are not a signifi cant contributor to the trend of longer and more expensive trials. Time is wasted by calling witnesses who have nothing probative to say, tendering documents that have no probative value, and asking questions which could not realistically be expected to elicit relevant evidence. With fewer trials, there are fewer experienced trial lawyers. Lawyers fear leaving something out and they do not want to be sec- ond guessed. Although all of these things have likely happened as long as there have been trials, they hap- pen more frequently now. In Hyrniak v. Mauldin, the court exhorted the bar to try to fi nd ways to shorten proceedings, and suggested the liberal use of summary judgment motions. None of this has anything much to do with juries. The civil jury trial has persisted because it has purpose. It would be easy to elaborate the law so it becomes incomprehensible, except to specialists. However, for a free and democratic society, the basic outlines of the law should be comprehensible to its citizens. Wigmore helped the law of evidence by systematizing the ad hoc exceptions to the hearsay rule. Our Supreme Court eliminated an unnecessary piece of jargon by clarifying the doctrine of res ipsa loquitur. Keeping the law comprehensible is a good thing, though more intellectually demanding. Jury trials provide us with an incentive to develop the law so that it can be explained to non-specialists. Our laws are supposed to refl ect the values of our community. Jury trials provide us with an opportunity to see what Canadians think. In some recent articles on this issue, some might detect an implied argument to the effect that juries sometimes "get it wrong". This does sometimes hap- pen. It may be a failing on the part of lawyers whose responsibility it is to put the evidence before them properly. Sometimes the criticism of juries is really a disagreement related to a generally expected result by lawyers. That is really not a valid criticism of a jury, nor does it mean they "got it wrong". Jury trials are a way to maintain a dialogue among the community at large, the bench and the bar. That dialogue is import- ant in a free and democratic society. There are ways to preserve judicial resources and meaningfully look at a jury result other than cutting off the conversation. By Todd J. McCarthy and J.-C. Rioux Flaherty McCarthy LLP The jury trial: our fellow citizens as our partners in the administration of justice WHEN YOU HIRE ONE OF US, YOU HIRE ALL OF US HONOURED TO BE ONE OF CANADA'S TOP 10 INSURANCE DEFENCE LITIGATION BOUTIQUE FIRMS As Voted By Canadian L awyer Magazine Forward Thinking Strategic Litigators CHOSEN AGAIN TORONTO | WHITBY | OT TAWA | FML AW.CA Sponsored by FlahertyMcCarthy_LT_Sep11_17.indd 1 2017-09-08 10:27 AM Informal approach not right for the catastrophically injured Continued from page 13 Brian Cameron says he sees the removal of the option to sue as part of the 'slow erosion' of claimant rights, following the advent of the no-fault insurance system. The decision deals with the legal issues in a very perfunctory way. Rocco Galati

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